Ex Parte Williams et al

Patent Trial and Appeal Board

Aug 5, 2016

12715090 (P.T.A.B. Aug. 5, 2016)

UNITED STA TES p A TENT AND TRADEMARK OFFICE
APPLICATION NO. FILING DATE
121715,090 03/01/2010
23598 7590 08/09/2016
BOYLE FREDRICKSON S.C.
840 North Plankinton A venue
MILWAUKEE, WI 53203
FIRST NAMED INVENTOR
Justin C. Williams
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O. Box 1450
Alexandria, Virginia 22313-1450
www .uspto.gov
ATTORNEY DOCKET NO. CONFIRMATION NO.
282.118 8052
EXAMINER
BERHANU, ETSUB D
ART UNIT PAPER NUMBER
3735
NOTIFICATION DATE DELIVERY MODE
08/09/2016 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address( es):
docketing@boylefred.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte JUSTIN C. WILLIAMS and VIVEK PRABHAKARAN
Appeal2014-008394
Application 12/715,090
Technology Center 3700
Before JENNIFER D. BAHR, LINDA E. HORNER, and
BRANDON J. WARNER, Administrative Patent Judges.
WARNER, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF THE CASE
Justin C. Williams and Vivek Prabhakaran ("Appellants") 1 appeal
under 35 U.S.C. § 134(a) from the Examiner's decision rejecting claims
1-20 and 22. See Appeal Br. 1. Claims 21 and 23-25 have been canceled.
See id. at 20, Claims App. We have jurisdiction over the appeal under
35 U.S.C. § 6(b).
We AFFIRM.
According to Appellants, the real party in interest is the Wisconsin
Alumni Research Foundation. Appeal Br. 3.
Appeal2014-008394
Application 12/715,090
CLAIMED SUBJECT MATTER
Appellants' disclosed invention relates to "a closed loop, neural
activity triggered rehabilitation device and method that facilitates the
recovery of a patient from the effects of a sensory motor disability." Spec.,
p. 1, 11. 11-13. Claims 1, 10, and 18 are independent. Claim 1, reproduced
below with emphasis added, is illustrative of the subject matter on appeal.
1. A closed loop, neural activity triggered rehabilitation
device for facilitating recovery of a patient from the effects of a
sensory motor disability, the patient including a brain and at
least one muscle, the device comprising:
a sensor system positionable adjacent the brain at a
predetermined location, the sensor system configured to detect
neural signals and the predetermined location corresponding to
an area of the brain used by the patient to move at least one
muscle;
a control system receiving the neural signals from the
sensor system and generating control signals in response to the
neural signals and a predetermined set of patient parameters, the
predetermined set of patient parameters being independent of
real time patient feedback; and
a functional stimulation component operatively
connectable to the control system and to the at least one muscle,
the functional stimulation component configured to stimulate
the at least one muscle in response to the control signals
received from the control system.
EVIDENCE
The Examiner relied on the following evidence in rejecting the claims
on appeal:
Flaherty US 2007 /0032738 Al Feb. 8,2007
Steven C. Cramer et al., Use of Functional MRI to Guide Decisions in
a Clinical Stroke Trial, 36 Stroke e50 (2005) ("Cramer")
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Appeal2014-008394
Application 12/715,090
REJECTIONS
The following rejections are before us for review:
I. Claims 1-17 stand rejected under 35 U.S.C. § 102(b) as
anticipated by Flaherty. Final Act. 2-3.
II. Claims 18-20 and 22 stand rejected under 35 U.S.C. § 103(a)
as being unpatentable over Flaherty and Cramer. Id. at 3--4.
ANALYSIS
Rejection I - Claims 1-17 as anticipated by Flaherty
Appellants rely on the same arguments against the rejection of
independent claims 1 and 10, and do not set forth any additional substantive
arguments against the rejection of the associated dependent claims, thereby
effectively arguing claims 1-17 as a group. See Appeal Br. 7-13; Reply
Br. 2-5. We select claim 1 as representative of the issues that Appellants
present in the appeal of this rejection, with claims 2-17 standing or falling
therewith. See 37 C.F.R. § 41.37(c)(l)(iv).
The Examiner found that Flaherty discloses all of the limitations as
recited in independent claim 1, including "a control system receiving the
neural signals from the sensor system and generating control signals in
response to the neural signals and a predetermined set of patient parameters,
the predetermined set of patient parameters being independent of real time
patient feedback" (Final Act. 2 (citing Flaherty ,-i,-i 7, 9-11, 83, 94)) and "a
plurality of stimulators operatively coupled to the control system and to the
at least one muscle, the plurality of stimulators stimulating the at least one
muscle in response to the control signals received from the control system"
(id. (citing Flaherty ,-i,-i 62, 68)).
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Appeal2014-008394
Application 12/715,090
Appellants argue that Flaherty does not disclose
a rehabilitation device incorporating a functional stimulation
component configured to stimulate the at least one muscle in
response to control signals derived from the neural signals
detected at a predetermined area of the brain and a predetermined
set of patient parameters which are independent of real time
patient feedback such as the location of a stroke in patient, the
motor deficits suffered by patient as a result of the stroke, the
time passed since the stroke, and/or the like.
Appeal Br. 9-10 (citing Flaherty iii! 62, 68). In particular, Appellants assert
that Flaherty instead discloses that "a transfer function is developed using
(or dependent upon) real time feedback from a patient during a patient
training routine such that processed signals incorporating the transfer
function are used to allow patient control of the controlled device." Id. at
10. Appellants further assert that "the control signals in [Flaherty] ... are
generated in response to real [time] feedback from the patient in the form of
neural signals and the transfer function, which is created from and entirely
dependent upon real time feedback from the patient." Reply Br. 3--4
( emphasis added). According to Appellants, "real time feedback is
necessary to derive the transfer function from which the control signals for
controlling any controlled device are generated." Id. at 4 (emphasis added).
We are not persuaded by Appellants' arguments. Initially, we note
that Appellants' arguments directed to paragraphs 62 and 68 of Flaherty (see
Appeal Br. 10-11) are not responsive to the rejection as articulated by the
Examiner, which relied on paragraphs 7, 9-11, 83, and 94 of Flaherty to
address the limitation pertaining to control signals generated in response to
neural signals and predetermined patient parameters that are independent of
real time patient feedback (see Final Act. 2). As the Examiner clarifies in
the Answer, Flaherty discloses that
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Appeal2014-008394
Application 12/715,090
a predetermined set of patient parameters (configuration input
parameters) independent of real time patient feedback [is] used
by the control system to generate configuration output
parameters, the configuration output parameters being used to
generate a processed signal transfer function, wherein the
processed signal transfer function is applied to detected neural
signals to generate the control signals.
Ans. 5 (citing Flaherty iii! 39, 83, 94). Specifically, Flaherty discloses
"utiliz[ing] one or more configuration input parameters to determine one or
more system output parameters used to develop a processed signal transfer
function," and that "configuration input parameters include ... patient
disease state, patient condition, patient age and other patient parameters."
Flaherty iJ 94 (emphasis added). According to the Examiner, "[p ]atient
disease state, patient condition[,] and patient age are all patient parameters
that are independent of real time patient feedback." Ans. 6 (emphasis
added).
Appellants do not contest the Examiner's clarified findings in this
regard. Instead, Appellants acknowledge that Flaherty' s "control signals for
the controlled device are generated in response to neural signals received
from the patient and the transfer function." Reply Br. 3 (emphasis added).
Therefore, because Flaherty' s control signals are generated in response to
the neural signal and the transfer function, and because the transfer function
is based, at least in part, on patient parameters that are independent of real
time patient feedback, Appellants do not apprise us of error in the
Examiner's finding that Flaherty anticipates the subject matter of claim 1,
which is supported by a preponderance of the evidence.
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Appeal2014-008394
Application 12/715,090
Accordingly, we sustain the rejection of independent claim 1, and of
claims 2-17 falling therewith, under 35 U.S.C. § 102(b) as anticipated by
Flaherty.
Rejection II - Claims 18-20 and 22 as unpatentable over
Flaherty and Cramer
With respect to the rejection of claims 18-20 and 22, Appellants rely
on the same arguments presented against Rejection I, discussed supra, and
add only that Cramer does not cure the asserted deficiencies of Flaherty in
Rejection I. See Appeal Br. 13-15; Reply Br. 5-6. Accordingly, for the
same reasons that Appellants' arguments do not apprise us of error in
Rejection I, Appellants also do not apprise us of error in Rejection II. We
likewise sustain the rejection of claims 18-20 and 22 under 35 U.S.C.
§ 103(a) as being unpatentable over Flaherty and Cramer.
DECISION
We AFFIRM the Examiner's decision rejecting claims 1-17 under
35 U.S.C. § 102(b) as anticipated by Flaherty.
We AFFIRM the Examiner's decision rejecting claims 18-20 and 22
under 35 U.S.C. § 103(a) as being unpatentable over Flaherty and Cramer.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § l.136(a). See 37 C.F.R.
§ l.136(a)(l )(iv).
AFFIRMED
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